Wold and Kleppir (No. 3)

[2009] FamCA 232

FAMILY COURT OF AUSTRALIA

WOLD & KLEPPIR (NO. 3) [2009] FamCA 232

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Change of solicitor shortly before trial – Husband has direct briefed in the past – Preparations have been made for witnesses – Matter is straightforward – Application dismissed

APPLICANT: Ms Wold

RESPONDENT: Mr Kleppir

FILE NUMBER: BRC 3211 of 2008

DATE DELIVERED: 20 March 2009

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 20 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Fisher, Solicitor of Neuman & Turnour Lawyers appeared for the Applicant Wife

SOLICITOR FOR THE RESPONDENT: Mr Billimoria, Solicitor of Emerson Family Law, Solicitors appeared for the Respondent Husband

Orders

IT IS ORDERED THAT:

1. The Husband’s Application in Form 2 filed 19 March 2009 is dismissed.

2. Leave given to the Respondent Father’s Solicitors to inspect the Family Court file and all subpoenaed documentation.

3. Costs reserved.

IT IS NOTED that publication of this judgment under the pseudonym Wold & Kleppir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC3211 of 2008

MS WOLD

Applicant

And

MR KLEPPIR

Respondent

REASONS FOR JUDGMENT

1. The application of the Husband for an adjournment is refused.

   RECORDED  :  NOT TRANSCRIBED

2. No material has been supplied previously as an explanation as to why Mr Supranowicz could not continue to act in this matter.  It appears that Mr Madsen may have been insisting on payment of fees.  I can well understand that he may not be in a position, but certainly Mr Supranowicz indicated that he was acting for the husband.  There was no qualification on that, there is no explanation as to why he could not continue to act in the matter.

3. In any event, as I have noted, a litigant cannot change lawyers immediately before a date of trial and then expect an adjournment because of that fact alone, regardless of whether the file has been retained or not.  A litigant cannot be in non-compliance with Court directions to file documentation and then rely on the litigant's own default as a basis for an adjournment.  The fact that the file has not been obtained can be cured in a number of ways, but it has been cured in the most direct of fashion and I do not know what arrangements there were for any costs involved, but the wife's solicitors simply copied all relevant Court documents and supplied that to the husband’s legal representatives.

4. I take into account the following matters, that the application has been made late, it is the week before the trial.  The matter has been set down for months.  There are numerous pre-trial hearings, there are numerous directions hearings.  We do all in our power to ensure the matter will go on. We try and get it to settle. If they will not settle, there are no glitches, everyone gives the assurances that it is otherwise ready for trial.

5. I take into account that this matter had a false start back in, I think, October 2008.  I had listed it as a reserve trial in the expectation the matter before it would settle.  My recollection, which may be faulty, is that the other matter I was assured was going on and as it turned out I brought this matter on early and said, well they had no prospects of going on for trial because the other matter would not settle.  In the end result I have something of a recollection that it did settle.

6. In the affidavit and in the submissions by the wife, the wife's witnesses are ready, they have arranged time off work, subpoenas have been issued, Mr M has been booked and I expect that his cancellation now would involve a cancellation fee.  Above all, the issues in this matter are relatively straightforward, it is not a complex matter.

7. I appreciate it is important for the parties, it is important for the children, but the property is relatively modest and the children's issues are relatively straight forward.  I do not have types of drug issues, psychiatric issues, addiction issues, alienation.  Well, there is some suggestion of alienation, but there is a report from Mr M.

8. Now, the lawyers have been engaged since 12 March and that would be 13 days prior to the date of trial.  In my view it happens on many occasions that a trial case has to be prepared over a weekend.  So it is important that there is not a culture of the Court's granting an adjournment.  It would be years since I last granted an adjournment and that would be in a case of very serious sudden emergency circumstance.  I think one last occasion the wife gave premature birth.

9. I give leave to the respondent's solicitors if they are to stay in the matter to inspect the file, to inspect subpoenaed material and that can be done today, that can be done Monday morning.  They can request any additional documentation from the applicant's legal representatives and I am confident that would be forthcoming.

10. If there was a suggestion from the legal representative to the husband that if the adjournment was not granted they would be withdrawing so be it, the father can represent himself, it would not be the first time, will not be the last.  Many a litigant has to represent themselves because of changed circumstances.  It seems silly that he has got to represent himself when he has got a grant of legal aid.  However, we will determine that situation on Monday morning.  The matter is adjourned to 10 o'clock Monday.  Thank you.

    RECORDED  :  NOT TRANSCRIBED

11. I will reserve on costs to the trial until I get the full picture.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  20 March 2009